PUBLIC LAW BOARD NO. 7101
CASE NO. 19
(Brotherhood of Maintenance of Way Employes
PARTIES TO THE DISPUTE:
(and
(
(Union Pacific Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
that:
(1) The Agreement was violated when the Carrier assigned outside
forces (Jacobs Contracting Services) to perform routine
Maintenance of Way of cleaning right of way of ties and debris'
within Green River, Wyoming Yard on the Stauffer Branch and
beginning at approximately Mile Post 847 near Granger,
Wyoming on the Wyoming Division and working westward
commencing on September 3, 2002 and continuing (System File D0252-2/1242714).
(2) The Agreement was further violated when the Carrier failed to
furnish the Genera! Chairman with proper advance written notice
of its intent to contract out the above-referenced work or make a
good-faith effort to reach an understanding concerning such
contracting as required by Rule 52(a).
(3) As a consequence of the violations referred to in Parts (1) and/or
(2) above, Roadway Equipment Operators R. M. Case, Truck
Operator M. A. Matthie, Extra Gang Laborers S. S. Lucero, M. S.
Condos, J. S. Wagstaff and J. J. Vasquez shall now '* * * each be
allowed an equal proportionate share of the man hours worked by
the outside contracting force as described in this claim, at their
respective Roadway Equipment Operators, Truck Operators and
Extra Gang Laborers Straight Time and Overtime rates of pay as
compensation for the violation of the Agreement for hours worked
by the outside contracting force in cleaning the Right of Way of tie
butts and debris. This claim for compensation includes that
Claimants be compensated for the loss in what is normally
considered overtime hours for Maintenance of Way Employes.'
The Carrier has declined this claim."
Page 2 PLB 7101
Case 19
FINDINGS:
The Board, upon consideration of the entire record and all of the evidence,
finds that the parties are Carrier and Employee within the meaning of the Railway
Labor Act, as amended; that this Board is duly constituted by Agreement; this
Board has jurisdiction over the dispute involved herein; and that the parties were
given due notice of the Hearing held.
Claimant R. M. Case has established and holds seniority as a Roadway
Equipment Operator on the Eastern District. Claimant M. A. Matthie has
established and holds seniority as a Truck Operator on the Wyoming Division.
Claimants S. S. Lucero, M.S. Condos, J. S. Wagstaff and J. J. Vasquez have
established and hold seniority as Extra Gang Laborers on the Wyoming Division.
On the dates involved in this matter, Claimants were regularly assigned to positions
within their respective classes.
Beginning on September 3, 2002 and continuing, the Carrier allegedly
assigned Jacobs Contracting Services to perform right of way cleaning work,
specifically cleaning the right of way of used ties, butts and debris on the Wyoming
I
Division within the Green River, Wyoming Yard on the Stauffer Branch and
beginning at approximately Mile post 847 near Granger, Wyoming and working
west. Two equipment operators and four laborers of Jacobs used equipment
allegedly recognized as Maintenance of Way equipment to pile, load and transport
ties, tie buts and debris. From September 3 through September 15, 2002, Jacobs
employees worked a minimum of nine hours per day, five days per week. Beginning
on September 16, 2002 and continuing, Jacobs employees worked a schedule of eight
days of 10, 11 or 12 hours each followed by seven rest days.
This case involves the Carrier's sale of ties, butts, and debris on an "as is,
where is" basis to an outside party, Kalamert Railroad Salvage. According to the
Carrier, according to the "as is, where is" Agreement, Kalamert had the right to
contract out the work of loading and transporting its purchased property, taking it
from the Carrier's right-of-way.
` The Organization contends that the Agreement was violated when the
Carrier allegedly assigned Jacobs to perform Maintenance of Way work,
specifically, cleaning the right of way of used ties, butts and debris on the Wyoming
I
Division within the Green River, Wyoming Yard on the Stauffer Branch and beginning
at approximately Mile post 847 near Granger, Wyoming and working west. First, it
i
claims that the Carrier did not provide adequate Notice to the Organization.
Second, the Organization claims that it was improper for the Carrier to contract out
i
I
Page 3 PLB 7101
Case 19
the above-mentioned work, which is work properly reserved to the Organization.
The Organization argues that because Claimants were denied the right to perform
the relevant work, Claimants should be compensated for the lost work opportunity.
Conversely, the Carrier takes the position that the Organization cannot meet
its burden of proof in this matter. The Carrier contends that the ties and wood
debris were sold to Kalamert Railroad Salvage on an "as is, where is" basis, which
historically has been allowed and work consequent to said sale is not the province of
the Organization. Because the work was performed pursuant to said sale, Notice to
the Organization was not required.
After a careful review of the record, we find that the instant matter qualifies
as an "as is, where is" sale and therefore, is outside the purview of the Agreement.
We note that "as is, where is" is defined as follows:
It is well settled that a genuine sale of Carrier property on an "as is,
where is" basis does not constitute an impermissible contracting of
reserved work . ... Because such sales do not involve work performed
for the Carrier, the notice requirements pertaining to contracting of
reserved work are not applicable. Third Division Award No.
37104
(Referee Wallin, 7/21/04)
In the instant case, we have reviewed the record and the specific language of
the Contract and find that the instant sale of the ties, butts and debris by the
Carrier to Kaiamert Railroad Salvage constitutes an "as is, where is" sale. Thus,
because the ties and wood debris became the purchaser's property, the removal of
said material does not fall under the purview of contracting. This was a bona fide
sale and therefore, the Carrier was not required to provide Notice to the
Organization. Thus, the Organization's Claim, including the issues of Notice and
work assignment, is denied.
Based on the evidence in this matter as well as the above-cited precedent, we
cannot find that the removal of the ties, butts and debris by Jacobs was improper.
The Organization has been unable to meet its burden of proof. The Claim is
therefore denied.
The Claim is denied.
Page 4 PLB 7101
Case 19
AWARD
Claim denied.
Steven
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Steven M. Bierig
Chairperson and Neutral Member
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Dominic
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Carrier Member Organization Member
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Dated at Chicago, Illinois this 14th day of June 2010.